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Braboy v. United States

United States District Court, D. New Jersey

April 30, 2018

KIMBERLY BRABOY, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          Anthony John Leonard, Esq. Paul H. Schultz, Esq. LEONARD SCIOLLA HUTCHINSON LEONARD & TINARI LLP Attorneys for Plaintiff

          Anne B. Taylor, Assistant U.S. Attorney OFFICE OF THE U.S. ATTORNEY, DISTRICT OF NEW JERSEY Attorney for Defendant

          OPINION

          JEROME B. SIMANDLE U.S. DISTRICT JUDGE

         I. INTRODUCTION

         This is a Federal Tort Claims Act case arising out of a slip and fall suffered by Plaintiff Kimberly Braboy in the Exchange store at the Joint Base Maguire-Dix-Lakehurst on July 4, 2014. Defendant United States of America moves for summary judgment [Docket Item 11] on two theories: 1) there is no genuine dispute of material fact that the sole “proximate cause” of Plaintiff's injury was her own inattention (rather than any negligence attributable to Defendant), as she was looking at her cellular telephone while walking down the store aisle whereupon she slipped on a clothes hanger; and/or 2) Plaintiff's negligence exceeds Defendant's negligence and she is barred from recovering damages. [Docket Item 11-2 at 6.]

         For the reasons set forth below, the Court will deny Defendant's Motion for Summary Judgment.

         II. BACKGROUND[1]

         A. Procedural Background

         Plaintiff filed this action on May 31, 2016, against Defendants Joint Base McGuire-Dix-Lakehurst Exchange and Army & Air Force Exchange Service, alleging one count of negligence. [Docket Item 1.] Subsequently, the parties agreed to substitute Defendant United States of America as the sole defendant in this action. [Docket Item 7.] Defendant then filed the instant motion for summary judgment [Docket Item 11]; Plaintiff filed a Response in Opposition [Docket Item 13]; and Defendant filed a Reply [Docket Item 15].

         B. Factual Background[2]

         On July 4, 2014, Plaintiff was at the Exchange store located on the Joint Base McGuire-Dix-Lakehurst (hereinafter “Exchange” or “the Exchange”). The Exchange is similar to a department store or a Target, in that it stocks several different types of goods, ranging from hardware to clothing.

         On that date, Plaintiff was walking down what both parties agree is either the (or “a”) “main aisle” of the exchange [Docket Items 11-1 ¶ 9; 13 at 20 ¶ 2], whereupon she slipped on a clothing hanger on the floor of the aisle [Docket Items 11-1 ¶ 2; 13 at 21 ¶ 11] and fell to the ground. The parties agree that the hanger was made of clear plastic with a metal hook (and Plaintiff states that all hangers for clothing at the Exchange were identical and of this same type [Docket Item 13 at 21 ¶ 12]); however, the actual hanger was apparently not preserved. Id. at 22 ¶ 13.

         Video surveillance footage, covering the time period beginning approximately 20 seconds before Plaintiff fell and continuing for some twenty (20) minutes thereafter (until Plaintiff was removed by paramedics) [id. at 22 ¶ 14], was preserved. Although some witnesses, when viewing the video footage, are able to identify the hanger, others are not. [Docket Items 11-1 ¶¶ 15-17; 13 at 22-23 ¶ 15.]

         Defendant states that the video shows “Plaintiff hold[ing] her cell phone in front of her face as she walks down the aisle” and then “stepping on a hanger, slipping, and falling to the ground.” [Docket Item 11-1 ¶¶ 16-17.] Plaintiff responds that “[t]here is no dispute that Ms. Braboy was using her cell phone at the time of her fall. Ms. Braboy's cell phone was small and she was able to see around it to observe the ground in front of her and her surroundings in general” and again disputes that the video shows the hanger. [Docket Item 13 at 23 ¶¶ 16-17.] Plaintiff also notes, by way of denial of Defendant's submitted assertion that “Plaintiff did not see the hanger she stepped on because she was looking at her cell phone” [Docket Item 11-1 ¶ 19], that she has stated “that if the hanger was not clear in color she would have been able to see it with her peripheral vision and would have avoided it.” [Docket Item 13 at 23 ¶ 19, citing Braboy Declaration, Docket Item 13 at 29-30, ¶ 10.]

         Specifically, Defendant points to the following exchanges in Plaintiff's deposition:

Q. Did you see the hanger before you stepped on it?
A. No.
Q. Were you looking ahead of you while you were walking?
A. I was looking at my cell phone.
Q. . . . When you were walking, was it your sense that you were paying attention to what you were writing to your mom on the phone?
A. Yes.
Q. And at other times where you walked and texted, do you have a general sense of the lay of the land around you while you are walking?
A. I don't know.
Q. Do like you would have a sense of if a rack of clothes is right in front of you, you would kind of walk around it, even if you are still texting?
A. Yes.
Q. But you don't have a specific sense of what's directly ...

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